Constitutional law — Charter of Rights — Self‑incrimination —
Retrial of accused on same charge — Crown cross‑examining accused on
their testimony given at prior trial to impeach their credibility — Whether use
of statements made at first trial violated accused’s right against self‑incrimination
guaranteed by s. 13 of Canadian Charter of Rights and Freedoms — Whether
s. 13 available to accused who choose to testify at their retrial on same
indictment.

In their retrial on a charge of first degree murder the accused told a
different story under oath than they had five years earlier at their first
trial on the same charge. At the new trial, the Crown cross‑examined the
accused on these prior inconsistent statements for the purpose of impeaching
their credibility. They were again convicted of first degree murder. On
appeal the accused argued that notwithstanding the fact they were not (and
could not be) compelled to testify at their first trial, they ought
nevertheless to have been protected as voluntary witnesses at their second
trial from exposure of the contradictory testimony they gave at the first
trial, despite the misleading impression with which such non‑disclosure
would have left the jury. The search for truth, they contended, is limited by
s. 13 of the Canadian Charter of Rights and Freedoms. The majority
judgment of the Court of Appeal rejected this argument and upheld the
conviction. The dissenting judge would have ordered a new trial because on his
view of Noël the use of the prior inconsistent statements in those
circumstances violated the accused’s right against self‑incrimination.

Held: The appeals should be dismissed.

Section 13 of the Charter is not available to an accused
who chooses to testify at his retrial on the same indictment. The purpose of
s. 13 is to protect individuals from being indirectly compelled to
incriminate themselves. As in the case of s. 5 of the Canada Evidence
Act, s. 13 embodies a quid pro quo: when a witness who is
compelled to give evidence in a proceeding is exposed to the risk of self‑incrimination,
the state offers, in exchange for that witness’s testimony, protection against
the subsequent use of that evidence against him. Here, the accused freely
testified at their first trial and freely testified at their second trial. The
compulsion, which is the source of the quid pro quo which in turn lies
at the root of s. 13, was missing. Accordingly, their s. 13Charter
rights were not violated by the Crown’s cross‑examination. They were in
no need of protection “from being indirectly compelled to incriminate
themselves”. [22] [42‑43] [47] [60]

The jurisprudence of this Court has not been altogether consistent on
the scope of s. 13 and it is therefore desirable to retrace the path from Dubois
to Noël. The Court’s practice, of course, is against departing from its
precedents unless there are compelling reasons to do so. Such circumstances
exist here in respect of Mannion. The consequences of failing to adhere
consistently to a purposeful interpretation of s. 13 have only emerged
over time as the courts have struggled to apply the Kuldip distinction
between impeachment of credibility and incrimination in ways that, as the
accused’s invocation of Noël illustrates, have become unduly and
unnecessarily complex and technical. The defence and the prosecution both view
with scepticism the idea that triers of fact can truly isolate the purpose of
impeaching credibility from the purpose of incrimination. They agree on the
problem but disagree about the solution. Moreover, the insistence that
s. 13 has the same application in a retrial of the same accused on the
same indictment as it does in a trial where the accused was formerly not an
accused but a compellable witness, has led to an unfair dilution of the
s. 13 protection in the latter situation. The attempt to subject these
very different situations to the same constitutional rule results in the end in
a satisfactory solution for neither. [8] [24] [44‑46]

Reviewing the Court’s s. 13 jurisprudence in light of its purpose
(“to protect individuals from being indirectly compelled to incriminate
themselves”), the argument of the Attorney General of Canada that Dubois
was wrongly decided is rejected. The accused has a right not to testify. The
Crown cannot file his testimony given at the prior trial (now overturned) as
part of its case‑in‑chief at the retrial, because to do so would
permit the Crown indirectly to compel the accused to testify at the retrial in
circumstances where s. 11(c) of the Charterwould not permit
such compelled self‑incrimination directly. The Crown must prove its
case without recruiting the accused to incriminate himself. [22] [39‑40]

On the other hand there are persuasive reasons for declining to follow Mannion.
In that case, the accused freely testified at his first and second trials. The
compulsion which is the source of the quid pro quo, which in turn lies
at the root of s. 13, was missing. Denying the Crown the opportunity to
cross‑examine the accused on his prior voluntary testimony gave him a
constitutional immunity to which he was not entitled. In Mannion, the
Court did not adopt an interpretation in line with the purpose of s. 13.
[42] [45]

Kuldip should be affirmed insofar as it permitted cross‑examination
of the accused on the inconsistent testimony he volunteered at his first trial.
However, insofar as the Court felt compelled by Mannion to narrow the
purpose of the cross‑examination to the issue of credibility, the
decision in the instant case not to follow Mannion renders such
restriction no longer operative. If the contradiction of testimony gives rise
to an inference of guilt, s. 13 of the Charter does not preclude
the trier of fact from drawing the common sense inference. [48]

Noël is a classic example of prosecutorial abuse of the very
“bargain” s. 13 was designed to enforce. Called to testify at somebody
else’s trial, Noël was a compellable witness who at common law could have
refused to answer the Crown’s questions that tended to show his guilt. He was
compelled by s. 5(1) of the Canada Evidence Act to answer the
incriminating questions, and in consequence he invoked the protection of
s. 5(2). When s. 5(2) says “the answer so given shall not be used or
admissible in evidence”, it means not to be used for any purpose, including the
impeachment of credibility. Noël is affirmed on its facts. [49]

Further, even though s. 13 talks of precluding the use of prior
evidence “to incriminate that witness”, and thus implicitly leaves the door
open to its use for other purposes such as impeachment of credibility, experience
has demonstrated the difficulty in practice of working with such
distinctions. As the distinction is unrealistic in the context of
s. 5(2), it must equally be unrealistic in the context of s. 13.
Accordingly, by parity of reasoning, prior compelled evidence should, under
s. 13 as under s. 5(2), be treated as inadmissible in evidence
against an accused, even for the ostensible purpose of challenging his or her
credibility, and be restricted (in the words of s. 13 itself) to “a prosecution
for perjury or for the giving of contradictory evidence”. Allen was a
straightforward application of Noël and its correctness is confirmed.
[50‑51]

Much of the argument on this appeal was directed to obiter
statements in various s. 13 cases. The notion is sometimes
(erroneously) attributed to Sellars that each phrase in a judgment of
this Court should be treated as if enacted in a statute. Such an approach is
not supported by the cases and is inconsistent with the basic fundamental
principle that the common law develops by experience. The submissions of the
attorneys general were predicated on a strict and tidy demarcation between the
narrow ratio decidendi of a case, which is binding, and obiter,
which they say may safely be ignored. This supposed dichotomy is an
oversimplification of how the common law develops. The traditional view
is that “a case is only an authority for what it actually decides”. Care must
be taken in determining how broadly or how narrowly to draw “what it actually
decides”. Beyond the ratio decidendi which is generally rooted in the
facts, the legal point decided by this Court may be as narrow as the jury
instruction at issue in Sellars or as broad as the Oakes test.
All obiter do not have, and are not intended to have, the same weight.
The weight decreases as one moves from the dispositive ratio decidendi
to a wider circle of analysis which is obviously intended for guidance and
which should be accepted as authoritative. Beyond that, there will be
commentary, examples or exposition that are intended to be helpful and may be
found to be persuasive, but are certainly not “binding” in the sense the Sellars
principle in its most exaggerated form would have it. The objective of the
exercise is to promote certainty in the law, not to stifle its growth and
creativity. To the extent that obiter statements in this Court’s
earlier s. 13 cases are inconsistent with the rationale of compulsion (the
“quid pro quo”), they should no longer be regarded as authoritative. [52‑53]
[57] [59]

The result of a purposeful interpretation of s. 13 is that an
accused will lose the Mannion advantage in relation to prior volunteered
testimony but his or her protection against the use of prior compelled
testimony will be strengthened. The two different situations will be treated
differently instead of homogenized, and the unpredictability inherent in
sorting out attacks on credibility from attempts at incrimination will be
avoided. [60]

Kenneth J. Yule, Q.C., and Ronald
C. Reimer, for the intervener the Attorney General of Canada.

M. David Lepofsky, for the intervener the Attorney General of
Ontario.

The judgment of the Court was delivered by

1Binnie J. _ In their retrial on a charge of
first degree murder the appellants told a different story under oath than they
had five years earlier at their first trial on the same charge. They were
cross-examined at the subsequent trial on these prior inconsistent statements.
They were again convicted of first degree murder. They claim this use of prior
statements violated their constitutional right against self-incrimination
guaranteed by s. 13 of the Canadian Charter of Rights and Freedoms.

2The right against self-incrimination is of course one of the cornerstones
of our criminal law. The right to stand silent before the accusations of the
state has its historical roots in the general revulsion against the practices
of the Star Chamber, and in modern times is intimately linked to our
adversarial system of criminal justice and the presumption of innocence.
Section 13 of the Charter gives constitutional protection to a more
specific privilege against testimonial self-incrimination. In Dubois
v. The Queen, [1985] 2 S.C.R. 350, the Court stated at p. 358 that

the purpose of s. 13, when the section is viewed in the context of
s. 11(c) and (d), is to protect individuals from being
indirectly compelled to incriminate themselves, to ensure that the Crown
will not be able to do indirectly that which s. 11(c) prohibits.
[Emphasis added.]

It seems a long
stretch from the important purpose served by a right designed to protect
against compelled self-incrimination to the proposition advanced by the
appellants in the present case, namely that an accused can volunteer one story
at his or her first trial, have it rejected by the jury, then after obtaining a
retrial on an unrelated ground of appeal volunteer a different and
contradictory story to a jury differently constituted in the hope of a better
result because the second jury is kept in the dark about the inconsistencies.

3The protective policy of s. 13 must be considered in light of the
countervailing concern that an accused, by tailoring his or her testimony at
successive trials on the same indictment, may obtain through unexposed lies and
contradictions an unjustified acquittal, thereby bringing into question the
credibility of the trial process itself. Effective cross-examination lies at
the core of a fair trial: R. v. Seaboyer, [1991] 2 S.C.R. 577, at
p. 608; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 663; R. v.
Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58, at para. 76; R. v. Lyttle,
[2004] 1 S.C.R. 193, 2004 SCC 5, at para. 41. Catching a witness in
self-contradictions is one of the staples of effective cross-examination.

4Having said that, there are observations in the Court’s previous
s. 13 jurisprudence that can fairly be said to fuel the appellants’
argument (none of which escaped their counsel’s skilful attention). It is
therefore necessary to return to the foundational case of Dubois and
trace the subsequent jurisprudence to clarify the role and function of
s. 13, and to explain why the appellants’ interpretation of s. 13
overshoots its purpose, and why it must therefore be rejected. The appeals, in
the result, will be dismissed.

I. Introduction

5The present case arises out of a botched “rip-off” of a
marijuana-growing operation (“grow-op”) at Port Coquitlam, British Columbia.
The appellants admit they carried out the rip-off, stealing 170 marijuana
plants, in the course of which the in-house caretaker of the grow-op was
murdered. He was suffocated by 24 feet of duct tape being wound around his
head, blocking the passage of air to his nose and mouth. The appellants admit
their involvement. They accept culpability for manslaughter. At issue is
whether the proper verdict is manslaughter or murder.

6The Crown’s case rested on both physical evidence and out-of-court
statements by both appellants to undercover police officers. In accordance
with Dubois, the Crown did not attempt to file at the retrial as part of
its case-in-chief the testimony of the appellants at their first trial.

7At the close of the Crown’s case on the retrial, both appellants decided
to testify. As he had at the first trial, Henry again claimed that he was
intoxicated, but other than remembering being intoxicated he now admitted to no
significant recollection of what happened. Riley testified in chief that while
he had “on occasion” lied at the first trial he now had a clear recollection
that he was not in the room when the fatal winding took place. He argued that
his candour in admitting previous falsehoods was a badge of present
truthfulness. Riley’s defence strategy at the retrial thus incorporated his
testimony at the previous trial. Henry’s defence was more simple. Not only
did he claim to recall less at the second trial than he testified to at the
first trial, at times he seemed to suggest that he did not even recall that an
earlier trial had taken place. The Crown took the view that it was entitled to
cross-examine both appellants on the testimony given at the prior trial for the
purpose of impeaching their credibility, and did so, relying in this respect on
R. v. Kuldip, [1990] 3 S.C.R. 618. The defence says that such cross-examination
even for the purpose of impeachment of credibility was unfair, but in any event
that the distinction in these circumstances between the purposes of impeachment
of credibility and incrimination is illusory. Reliance was placed on R. v.
Noël, [2002] 3 S.C.R. 433, 2002 SCC 67, and R. v. Allen, [2003] 1
S.C.R. 223, 2003 SCC 18, to exclude the damaging inconsistencies. The Crown,
for its part, says that the accused in volunteering their testimony at the
second trial stepped outside the protection of s. 13, and that any
observations to the contrary in the Court’s previous s. 13 jurisprudence
should be reconsidered. Thus issue was joined on the proper scope of
s. 13.

8I pause at this juncture to observe that both parties view with
scepticism the idea that the trier of fact can truly isolate the purpose of
impeaching credibility from the purpose of incrimination. They agree on the
problem but disagree about the solution. The appellants’ solution, relying on Noël,
is that unless the statements used to contradict the present testimony were
innocuous when made at the first trial, and still innocuous at the second
trial, they should be altogether excluded, i.e. even for the limited
purpose of challenging credibility. They wish to see a roll-back of Kuldip.
Otherwise, they fear, the contradictions may well be used by the trier of fact
for the forbidden purpose of incrimination. The Crown also recognizes the
troublesome nature of the distinction but, relying on Kuldip, says that
fair trial considerations absolutely require that the contradictions in the
evidence of an accused be exposed. The Crown then goes further than Kuldip
in saying that the trier of fact should be able to make of the contradictions
what it wishes, including drawing an inference of guilt, and indeed that a
realistic appraisal of the trial process permits no other conclusion, human
nature being what it is.

9It has long been recognized that the distinction between credibility and
incrimination in this particular context is “troublesome” (as Lamer C.J.
described it in Kuldip, at p. 635) and “difficult” (as Martin J.A.
described it in Kuldip when the case was before the Ontario Court of
Appeal ((1988), 40 C.C.C. (3d) 11, at p. 23)). As both the defence
lawyers and the prosecutors agree that a problem exists, the question is: what
should be done about it, having regard to the 20 years of experience since Dubois?

II. Facts

10On October 17, 2001, a jury convicted the two appellants of the first
degree murder of Timothy Langmead, who had operated a marijuana “grow-op” at
Port Coquitlam, B.C. In the course of a “rip-off” of that operation by the
appellants, Langmead was tied to a chair, had duct tape wound around his mouth
and nose, and suffocated. At their first trial in 1996 the appellants admitted
their involvement in the unlawful confinement that led up to his death, but
they pleaded diminished responsibility because of intoxication.

11The appellant Riley and the victim Langmead were acquaintances. They
had both done work over the years for the same marijuana dealer. In fact Riley
had helped set up the marijuana grow-op in Port Coquitlam that was being tended
by Langmead on the night Langmead was killed. Riley claimed that he was owed
$5,000 to $10,000 by the drug dealer for wiring a bypass of the hydro meter and
other services. On the night of June 8, 1994, he and two accomplices planned
to help themselves to some marijuana plants by way of compensation.

12Riley and the appellant Henry knew each other from high school in the
B.C. Interior. The two of them, along with another individual (Gabe Abbott,
who was not charged) drove to Langmead’s house. They said they expected that
Langmead would not be home, but he was, or came home shortly after they entered
the house. Riley knew that Langmead recognized him from their earlier
dealings. Although the details are not clear, it seems there was some struggle
between Riley and Langmead. Once subdued, Langmead was put in a chair and his
arms secured by rope or duct tape. He began to yell. Tape was applied to his
mouth. The question was whether Henry or Riley applied the fatal windings of 24
feet of duct tape to Langmead’s mouth and nose, or whether it was both of them,
and with what intent. After the killing, the three intruders stole marijuana
plants, a guitar, a VCR and a van. They took Langmead’s body with them. They
drove a couple of hours to the Alexandra Bridge in the Fraser Canyon, threw the
body into the river and rolled the van over a cliff. Nine days later,
Langmead’s body was found floating downstream. The duct tape was still wound
around his head.

13The police mounted an undercover operation and obtained incriminating
statements from both of the appellants boasting of responsibility for the death
of Langmead. After Riley’s arrest, he made some further admissions to the
police.

14Both appellants were convicted of first degree murder, but in 1999 the
British Columbia Court of Appeal held that the trial judge had failed to
properly instruct the jury on the defence of intoxication. A new trial was
ordered: (1999), 117 B.C.A.C. 49, 1999 BCCA 22.

15At the second trial Henry continued to advance the defence of
intoxication but Riley largely resiled from it, seeking instead to use his
greater recollection of events to push the responsibility onto Henry. He
testified to having assisted in securing Langmead’s mouth with a few small
pieces of tape only to stop him yelling, and said that thereafter Henry was
alone with Langmead. Both men, through their counsel, again admitted criminal
responsibility for manslaughter. The only live issue at the second trial, as
at the first trial, was whether it was a case of murder.

13. A witness who testifies in any
proceedings has the right not to have any incriminating evidence so given used
to incriminate that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence.

5. (1) No witness shall be excused from answering any question
on the ground that the answer to the question may tend to criminate him, or may
tend to establish his liability to a civil proceeding at the instance of the
Crown or of any person.

(2) Where with respect to any question a
witness objects to answer on the ground that his answer may tend to criminate
him, or may tend to establish his liability to a civil proceeding at the
instance of the Crown or of any person, and if but for this Act, or the Act of
any provincial legislature, the witness would therefore have been excused from
answering the question, then although the witness is by reason of this Act or
the provincial Act compelled to answer, the answer so given shall not be used
or admissible in evidence against him in any criminal trial or other criminal
proceeding against him thereafter taking place, other than a prosecution for
perjury in the giving of that evidence or for the giving of contradictory
evidence.

2. Judicial History

(a) The Trial Judge’s Instructions on the Use
of Prior Inconsistent Statements

17The trial judge instructed the jury that they could use a witness’s
prior inconsistent statement whether given “under oath or otherwise” to assess
the credibility of that witness’s testimony, but that they could not use the
prior statement for proof of its truth unless the witness adopted the statement
as true. There was no objection by defence counsel to this portion of the
charge.

18Dealing specifically with references in the testimony to “another
proceeding”, the trial judge instructed the jury that they were not to
speculate as to the nature or outcome of those proceedings. He also reminded
the jury that Riley had admitted to lying under oath, and that this was a
factor to be considered in assessing his credibility as a witness.

19A three-judge panel of the British Columbia Court of Appeal divided on
the scope to be given to this Court’s decision in Noël. In Southin
J.A.’s analysis, Noël stands for the proposition that the testimony of a
witness tending to prove him guilty of an offence, if given on someone else’s
trial, could not be used at his own subsequent trial for that same offence.
The protection did not apply to the retrial of the same accused on the same
charge.

20Newbury J.A. took the view that on the facts both appellants had “opened
the door” in their own testimony to being cross-examined on the prior
inconsistent statements given at the first trial. The trade-off between the
right of the Crown to compel a witness to answer questions _ the response to which might
incriminate him _ and the right
of an accused qua witness not to incriminate himself, does not apply
where he has chosen to testify regarding previous incriminating statements
given by himself in the first trial. Here the appellants’ testimony had not
been compelled; rather, it was offered in the second trial in an apparent
attempt to gain credibility. The Crown was entitled to cross-examine on that
evidence, she held.

21Hall J.A., dissenting, considered that Noël had narrowed the
permissible ambit of cross-examination of an accused in a retrial of the same
charge. On this view the cross-examination at the second trial of both
appellants infringed the prohibition imposed by s. 13 of the Charter.
The Crown used portions of Riley’s previous testimony to show that he was more
of a direct participant in the death of the victim than he had acknowledged in
his testimony-in-chief at the second trial. The Crown’s cross-examination of
both appellants on the prior inconsistent statements was not just directed to
credibility. Its effect was to incriminate them as being active participants
in the murder. This was contrary to the principles laid down in Noël
and Allen. He was not persuaded that the verdicts concerning both men
would necessarily have been the same absent the error. He would have allowed
the appeals of both appellants and ordered a third trial on the same charge.
The appeal thus comes to us as of right based on Hall J.A.’s dissent on the
proper scope of Noël and Allen.

III. Analysis

22The consistent theme in the s. 13 jurisprudence is that “the
purpose of s. 13 . . . is to protect individuals from being indirectly
compelled to incriminate themselves” (Dubois, at p. 358, and
reiterated in Kuldip, at p. 629). That same purpose was flagged in Noël,
the Court’s most recent examination of s. 13, by Arbour J., at para. 21:

Section 13 reflects a long-standing form of statutory
protection against compulsory self-incrimination in Canadian law, and is
best understood by reference to s. 5 of the Canada Evidence Act.
Like the statutory protection, the constitutional one represents what Fish J.A.
called a quid pro quo: when a witness who is compelled to give
evidence in a court proceeding is exposed to the risk of self-incrimination,
the state offers protection against the subsequent use of that evidence against
the witness in exchange for his or her full and frank testimony. [Emphasis
added.]

23There is thus a consensus that s. 13 was intended to extend
s. 5 of the Canada Evidence Act to give further and better effect
to this purpose. As McIntyre J. pointed out in Dubois, in reasons that
dissented in the result but not on this point, s. 13 “does not depend on
any objection made by the witness giving the evidence. It is applicable and
effective without invocation, and even where the witness in question is unaware
of his rights” (p. 377). Further, s. 13 “is not limited to a
question in respect of which a witness would have been entitled to refuse to
answer at common law and its prohibition against the use of incriminating
evidence is not limited to criminal proceedings. It confers a right against
incrimination by the use of evidence given in one proceeding in any other
proceedings” (p. 377). Noël, our most recent pronouncement, also agreed
that s. 13 was intimately linked (though not necessarily limited to) the
role and function traditionally served by s. 5 of the Canada Evidence
Act.

24Despite these broad areas of agreement, the Court’s s. 13
jurisprudence bristles with observations that enable the appellants to argue
with a measure of indignation that notwithstanding the fact they were not (and
could not be) compelled to testify at their first trial, they ought
nevertheless to have been protected as volunteers at their second trial from
exposure of the contradictory testimony they gave at the first trial, despite
the misleading impression with which such non-disclosure would have left the
jury. The search for truth, they say, is limited by constitutional
considerations. The appellants rely in particular on observations made in Noël,
even though Noël did not involve the retrial of an accused on the same
indictment, but the trial of an accused whose previous testimony had been
compelled at the trial of somebody else on charges related to the same subject
matter. Noël was a classic application of s. 5(2) of the Canada
Evidence Act, which in fact had wisely been invoked on Noël’s behalf at the
earlier trial of that other person, who happened to be his brother. It is
therefore desirable to retrace the essentials of the jurisprudence from Dubois
to Noël to determine whether the appellants’ position on s. 13 is
well founded.

25Section 13 of the Charter precludes “incriminating evidence”
given in one proceeding from being “used to incriminate that witness in any
other proceedings”. Incriminating evidence means “something ‘from which a
trier of fact may infer that an accused is guilty of the crime charged’”: Kuldip,
at p. 633. The meaning of this protection in the context of a retrial of an
accused on the same charge was first considered in Dubois. The question
was phrased in that case by Lamer J. (as he then was): “When a new trial is
ordered on the same charge or on an included offence by a court of appeal, can
the Crown adduce as evidence-in-chief the testimony given by an accused
at the former trial?” (p. 353 (emphasis added)). Dubois was charged with
second degree murder. At his first trial he admitted that he had killed the
deceased but alleged justification. He was convicted, but successfully appealed
the conviction and was granted a new trial on grounds of a misdirection to the
jury. At the retrial, as part of its case-in-chief, the Crown read in Dubois’
testimony from the first trial over an objection by Dubois’ counsel based on s.
13 of the Charter. Dubois chose not to testify nor did he call any
evidence. He was again convicted. The majority of our Court agreed that the
testimony of the accused at the first trial could not be used by the Crown as
part of its “case to meet” to incriminate the accused at the retrial on the
same charge.

26More specifically, Dubois concluded that the reference in s. 13
to “other proceedings” includes a retrial on the same indictment and that the
term “witness” in s. 13 also applies to an accused testifying (voluntarily) in
his or her own defence. Lamer J., for the majority, held that “given the
nature and purpose of the [s. 13] right, which is essentially protection
against self-incrimination, the issue of whether the testimony was compulsory
or voluntary at the moment it was given is largely irrelevant. The focus of
the right is on the second proceedings, the time at which the previous
testimony is sought to be used, rather than the time at which it is given” (p.
361). At the second proceeding, however, Dubois was not a witness. He was
exercising his absolute right not to testify at all. Therefore, as Lamer J.
pointed out at p. 365: “I do not see how the evidence given by the accused to
meet the case as it was in the first trial could become part of the Crown’s
case against the accused in the second trial, without being in violation of
s. 11(d) [the presumption of innocence], and to a lesser extent of
s. 11(c) [the right not to be compelled to be a witness].”

27In my view, the same result would have followed if at the retrial in the
present case the appellants had chosen not to testify. Whether or not the
appellants had been voluntary witnesses at the earlier trial would have been,
in that respect, irrelevant. At the second trial the testimony, had the Crown
been permitted to file it as part of the case-in-chief, would have been
compelled, and its use, on a purposeful interpretation of s. 13,
prohibited.

28Dubois was applied in R. v. Mannion, [1986] 2 S.C.R. 272,
where, as in the present case, the Crown attempted to use prior inconsistent
statements in the cross-examination of an accused at a retrial. The
accused was charged with raping a woman in Edmonton. Shortly thereafter, but
before an arrest could be made, he left Edmonton heading for British Columbia.
Whether or not his departure could give rise to an inference of guilt depended
in part on whether he knew of the rape investigation before he left. At the
first trial he said that when he spoke to a police officer before his
departure, he had been told that the officer wanted to see him concerning a
rape. At the second trial, no doubt sensing the danger, he changed his story
to say that while he knew the officer wanted to speak with him, he understood
it was about his work as a police informant on unrelated matters, and he was
afraid to speak to the officer because he had not lived up to certain
obligations. At the second trial, the accused was cross-examined on the
different explanation he gave at the first trial, which the Crown submitted for
the truth of its content. McIntyre J., for the Court, held that the
cross-examination was improper. In doing so, however, he focussed on the purpose
of the cross-examination (incrimination), rather than the purpose of
s. 13 (protection against compelled self-incrimination). McIntyre
J., with the unanimous support of his colleagues, accepted that the result of
the holding in Dubois (in which he had dissented) dictated the outcome
in Mannion. The distinction between Dubois’ status as a compelled
witness at the second trial and Mannion’s status as a volunteer at both trials
was not commented upon.

29The Court returned to a purposive interpretation in Kuldip. The
accused was charged with failing to remain at the scene of a car accident with
the intent of escaping civil or criminal liability. At his first trial he
volunteered that he had reported the accident to a constable at a police station
in Toronto whom he identified as P.C. Brown. The Crown established that Brown
was not on duty on the day in question. At the retrial, the accused again chose
to testify, but changed his story to accommodate that awkward fact. Lamer C.J.
for the majority of the Court held that the accused was properly confronted
with his prior inconsistent statement:

An interpretation of s. 13 which insulates such an accused from having
previous inconsistent statements put to him/her on cross-examination where the
only purpose of doing so is to challenge that accused’s credibility, would, in
my view, “stack the deck” too highly in favour of the accused. [p. 636]

30In other respects, Kuldip followed where Mannion had led.
Lamer C.J. stated that the questions raised in the appeal were “identical to
those examined by this Court in Mannion” (p. 628). The only difference
in his view was that in Mannion, the purpose of the cross-examination
was to incriminate, whereas in Kuldip it was to impeach credibility. A
successful impeachment would do no more than nullify the accused’s testimony.
The Crown could not obtain a conviction except on the basis of other evidence.

31Of interest in Kuldip is the example given by Lamer C.J., at p.
634, of a witness at a murder trial who testifies that the accused could not
have murdered the victim in Ottawa because on the day in question they were
both in Montreal doing a bank robbery. If the witness were later charged with
the bank robbery in Montreal, and changed his story at his trial to say that in
fact he was in Ottawa that day, Lamer C.J. said it would not infringe s. 13 to
impeach credibility using the earlier admission (despite the fact the statement
was incriminating both when given at the earlier trial and when used at the
later trial). However the trial judge must warn the jury “that it would not be
open to it to conclude, on the basis of his previous statement, that the
accused was in Montreal on the day of the alleged bank robbery nor to conclude
that the accused did, in fact, commit the bank robbery” (pp. 634-35). As will
be seen, the facts of the example anticipate, to some extent, the situation in Noël.

32Kuldip thus qualified Mannion. If the prior testimony is
used at the retrial to incriminate, Mannion says s. 13 is violated. If
the prior testimony is used to impeach credibility, and thereby to nullify the
accused’s retrial testimony, Kuldip says s. 13 permits it. As Lamer
C.J.’s example of the bank robber shows, however, the distinction poses
problems. There can be few triers of fact, whether judge or jurors, who would
not have found the prior admission of the accused, that on the day in question
he was in Montreal robbing a bank, probative on the issue of guilt of that
offence.

33Kuldip was endorsed by Noël, which applied the s. 13
jurisprudence to the case of an accused who at the previous trial was not the
accused but a mere witness at somebody else’s trial (as in Lamer C.J.’s bank
robbery example in Kuldip). The accused had testified as a compellable
witness during his brother’s trial about his complicity in the senseless
strangulation of a nine-year-old boy. He was subsequently charged with the
murder, but at his own trial he denied any such complicity. The Crown put to
him statement after statement that he had made at the earlier trial, which he
acknowledged having made, and which formed an important element (if it was not
virtually conclusive) in establishing his guilt. In that context, and
recognizing that when testifying as a witness at his brother’s trial Noël had
claimed the protection of s. 5 of the Canada Evidence Act, Arbour J.
emphasized the quid pro quo “when a witness who is compelled to
give evidence in a court proceeding is exposed to the risk of
self-incrimination” (emphasis added) and held that “the state offers protection
against the subsequent use of that evidence against the witness in exchange for
his or her full and frank testimony” (para. 21). The emphasis in Noël
on the quid pro quo reinforces the link between s. 13 of the Charter
and s. 5 of the Canada Evidence Act and the whole issue of
compelled testimony. It must be recognized that a witness who was also the
accused at the first trial is at both trials a voluntary rather than a
compelled witness, and therefore does not offer the same quid pro quo.
(The notion that an accused who volunteers testimony can simultaneously object
to answering questions whose answers may tend to incriminate him or her is a
difficult concept. The whole point of volunteering testimony is to respond to
the prosecution’s case. Even answers to his or her own counsel’s questions may
tend to incriminate.)

34Despite the difference between the trial of an accused who was a
compelled witness in another “proceeding” and the retrial of an accused who
volunteered evidence at both the first and second trials, the appellants here
rely on the observation of Arbour J. at para. 4 of Noël:

When an accused testifies at trial, he cannot be cross-examined on the
basis of a prior testimony unless the trial judge is satisfied that there is no
realistic danger that his prior testimony could be used to incriminate him.
The danger of incrimination will vary with the nature of the prior evidence and
the circumstances of the case including the efficacy of an adequate instruction
to the jury.

The facts of Noël
provide an interesting parallel to Lamer C.J.’s bank robbery example in Kuldip.
In Lamer C.J.’s example, the prior testimony was considered admissible for
impeachment, although it was undeniably incriminatory when given, and would
almost certainly have been taken as incriminatory if allowed into evidence at
the second trial. In Noël, the Crown’s incriminatory purpose was
unmistakable. Yet in both the bank robber example and in Noël itself
the prior testimony was compelled, and its use thus posed a serious problem not
only under the Dubois analysis of s. 13 but under s. 11(c)
of the Charter and s. 5(2) of the Canada Evidence Act. (For
present purposes, evidence of compellable witnesses should be treated as
compelled even if their attendance was not enforced by a subpoena.)

35Kuldip can be seen as an attempt by the Court to put the brakes
on Mannion, but in its unwillingness to reconsider its reasoning in Mannion,
the Court was required to resort to reliance on the sometimes difficult
distinction between the purposes of impeachment of credibility and
incrimination. Although this distinction is well established in the law (see,
e.g., R. v. Calder, [1996] 1 S.C.R. 660, at para. 25), its practicality
in this particular context is frequently questioned. It is worth setting out
in full what was said by Arthur Martin J.A., writing in Kuldip,
when it was before the Ontario Court of Appeal:

Furthermore, in my view, where the prior evidence is
used ostensibly to impeach the accused’s credibility only, it nevertheless does
assist the Crown in its case and, in a broad sense, may help to prove guilt.
It is often difficult to draw a clear line between cross-examination on the
accused’s prior testimony for the purpose of incriminating him and such
cross-examination for the purpose of impeaching his credibility. If the court
concludes on the basis of the accused’s contradictory statements that he
deliberately lied on a material matter, that lie could give rise to an
inference of guilt. [p. 23]

In Martin J.A.’s
view, successful invocation of s. 5(2) of the Canada Evidence Act
ought to exclude the prior testimony of the witness for any purpose,
including impeachment of credibility (p. 20). Arbour J., writing in Noël
in the context of incriminating statements made by a current accused at the
earlier trial of somebody else, agreed with this interpretation (paras. 31-33)
except for her acceptance of Kuldip in the very limited case of
statements innocuous when made at the first trial and still innocuous with
respect to the issue of guilt at the second trial (paras. 30 and 45). This,
she observed, is the only outcome consistent with the quid pro quo that
“lies at the heart of s. 13” (para. 25), which should be interpreted in a
manner “co-extensive with that of s. 5(2) of the Canada Evidence Act”
(para. 34).

36The controversial aspect of Noël lies in its obiter
extending to an accused at a retrial on the same indictment the identical protection
enjoyed by witnesses who are compelled to testify at the trial of somebody else
(or in another “proceeding”), and who can therefore invoke both s. 13 of
the Charter and s. 5(2) of the Canada Evidence Act. Noël
decides that in both cases, the root of this protection lies “in the quid
pro quo” (para. 22) under which as a matter of legislative policy,
testimonial immunity at common law was exchanged in 1893 for a limited
testimonial use immunity.

37Noël was subsequently applied by this Court in Allen. That
too was a case of an accused being confronted with prior testimony he had given
as a witness at the trial of somebody else for the same murder. The
Newfoundland Court of Appeal, O’Neill J.A. dissenting, found that the
cross-examination was directed to credibility, and was therefore authorized by Kuldip:
(2002), 208 Nfld. & P.E.I.R. 250, 2002 NFCA 2. Some of the prior compelled
testimony used “to impeach” included statements that the accused had killed or
thought he had killed the victim. In a brief judgment, this Court without much
discussion applied Noël to find a s. 13 violation.

38To recapitulate: Dubois was an attempt to compel testimony at a
retrial; Mannion and Kuldip involved the use of prior voluntary
testimony of an accused at the retrial; and Noël and Allen, were
attempts by the Crown to use the compelled testimony of a witness at an earlier
trial who had become the accused at the later trial. Despite this variation,
in all of these cases except Kuldip, the prior testimony was excluded on
the basis of s. 13 operating in combination with s. 11(c) of
the Charter (and, in Noël, with s. 5(2) of the Canada
Evidence Act). Clearly there has not been consistent adherence to the
underlying purpose of s. 13, namely “to protect individuals from being
indirectly compelled to incriminate themselves” (emphasis added) (Dubois,
at p. 358; Kuldip, at p. 629; and Noël, at para. 21).

2. Should the Court Reconsider Dubois?

39The Attorney General of Canada submits that the Court should overrule Dubois
and hold that s. 13 has no application to a retrial. The rationale underlying Dubois
for extending s. 13 protection to an accused in a retrial, however, was because
when a “new” trial is ordered the accused is entitled not to testify at all.
Thus, to allow the Crown simply to file the testimony of the accused given at
the prior trial (now overturned) would permit the Crown indirectly to compel
the accused to testify at the retrial where s. 11(c) of the Charter
would not permit such compelled self-incrimination directly. The Crown must
prove its case without recruiting the accused to self-incriminate. As Lamer J.
pointed out,

the accused is being conscripted to help the Crown in discharging
its burden of a case to meet, and is thereby denied his or her right to
stand mute until a case has been made out. [Emphasis in original; p. 365.]

40Dubois, to repeat, was an attempt to compel testimony. The
result was correct and we should decline the invitation to revisit it.

3. Should the Court Reconsider Mannion?

41While Mannion followed Dubois on the textual point that
the words “other proceedings” in s. 13 include a retrial of the same
accused on the same indictment, it did not ask the further question whether
excluding cross-examination on the prior volunteered testimony would further
the purpose of s. 13 identified in Dubois, namely “to
protect individuals from being indirectly compelled to incriminate
themselves” (p. 358 (emphasis added)). Mannion was under reserve at the
same time as Dubois and, as stated, the Court seems to have concluded
that the result in the latter dictated the outcome of the former.

42In my view, the crux of the problem is this. In Dubois, the
prosecution sought to pre-empt the right of the accused not to testify. The
filing of the earlier testimony was compelled self-incrimination. In Mannion,
there was no such compulsion. The accused freely testified at his first trial
and freely testified at his second trial. The compulsion, which lies at the
root of the quid pro quo which in turn lies at the root of s. 13,
was missing. Experience in the 20 years since Dubois and Mannion
were decided shows that taking our eye off the underlying purpose of s. 13
has given rise to a number of distinctions and sub-distinctions that in the end
have proven unworkable. Indeed in Noël, as Fish J.A. pointed out when
the case was before the Quebec Court of Appeal, the jury asked a question which
clearly demonstrated their failure (or unwillingness) to grasp the distinction
between use of prior statements for the impeachment of credibility and use of
prior statements for the purpose of incrimination (see (2001), 156 C.C.C. (3d)
17, at paras. 169 and 173-74, and in this Court, at paras. 19-20).

43In my respectful view, notwithstanding the strong Court that decided Mannion
and the cases that followed it, we should hold that s. 13 is not
available to an accused who chooses to testify at his or her retrial on the
same indictment.

44The Court’s practice, of course, is against departing from its
precedents unless there are compelling reasons to do so: R. v. Salituro,
[1991] 3 S.C.R. 654; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. B.
(K.G.), [1993] 1 S.C.R. 740, at pp. 777-83; and R. v. Robinson,
[1996] 1 S.C.R. 683, at paras. 16-46. Nevertheless, while rare, departures do
occur. In Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680,
it was said that “[t]his Court has made it clear that constitutional decisions
are not immutable, even in the absence of constitutional amendment” (p. 704),
and in the Charter context the Court in United States v. Burns,
[2001] 1 S.C.R. 283, 2001 SCC 7, effectively overturned the result (if not the
reasoning) in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R.
779, and Reference re Ng Extradition (Can.), [1991] 2 S.C.R. 858. In
the area of human rights, important reappraisals were made in Central
Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.
489 (overturning the reasoning in Bhinder v. Canadian National Railway Co.,
[1985] 2 S.C.R. 561), and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R.
1219 (overturning Bliss v. Attorney General ofCanada, [1979] 1
S.C.R. 183). The Court should be particularly careful before reversing a
precedent where the effect is to diminish Charter protection.

45I believe there are compelling reasons for declining to follow Mannion.
The first, as discussed earlier, is that Mannion did not adopt an
interpretation in line with the purpose of s. 13 spelled out in Dubois.
Although Dubois had said that no distinction should be drawn between
testimony that had been compelled or voluntary at the first trial, that comment
was made in the context of an attempt to compel testimony at the second trial.
The second reason is that the consequences of failing to return to the purpose
of s. 13 have only emerged over time as the courts have struggled to work
with the distinction between impeachment of credibility and incrimination in
ways that, as the appellants’ invocation of Noël illustrates in the
present case, become “unduly and unnecessarily complex and technical”: R. v.
Bernard, [1988] 2 S.C.R. 833, at p. 859. In Noël, it will be
recalled, the Court identified permissible cross-examination by reference to
testimony “innocuous” when made at the initial trial and “innocuous” when used
at the retrial, opening up consideration of various combinations and
permutations of statements innocuous/incriminating, incriminating/innocuous and
incriminating/incriminating, an exercise in classification that when argued on
a question by question basis can become both protracted and somewhat
unpredictable, as an examination of the questions at issue in the present
appeal illustrates.

46The third reason, and I think the most important, is that the insistence
that s. 13 has the same application in a retrial of the same accused on
the same indictment as it does in a trial where the accused was formerly not an
accused but a compellable witness has led to an unfair dilution of the
s. 13 protection in the latter situation. Thus in the bank robbery example
in Kuldip, the compelled testimony given as a witness at somebody else’s
trial would virtually guarantee the bank robber’s conviction in his own
subsequent prosecution. This is contrary to sound principle. Even though the
bank robber was a compelled witness who had given quid pro quo testimony
(as in Noël) at somebody else’s trial, he would receive no greater or
lesser protection than an accused who had been under no such compulsion at the
earlier trial (Kuldip and Mannion). The attempt to subject these
very different situations to the same constitutional rule results in the end in
a satisfactory solution for neither.

47In Noël, the Court saw the unfairness of putting compelled
testimony to the accused and held that the Crown would be permitted to cross-examine
an accused on prior testimony only

when there is no possibility that the jury could use the content
of the prior testimony to draw an inference of guilt, except to the limited
extent that a finding that the accused has been untruthful under oath could be
damaging to his defence. [Emphasis added; para. 54.]

The “no
possibility” test significantly raises the bar set in Kuldip, yet one
can readily see the need for such a stringent test on the facts of Noël,
where the prior statements were made by a compelled witness who had invoked
s. 5(2) of the Canada Evidence Act. However, the stringency of the
“no possibility” test in Noël does not provide a satisfactory resolution
in the case of a retrial of the accused who volunteers testimony at both trials
and then seeks to shelter self-serving inconsistencies behind a Charter
barrier. While the appellants argue (with some justification) that such an
immunity flows from the Mannion line of cases, such a result is
completely inconsistent with a purposive reading of s. 13. For these
reasons, I believe Mannion should not be followed. Accused persons who
testify at their first trial and then volunteer inconsistent testimony at the
retrial on the same charge are in no need of protection “from being indirectly compelled
to incriminate themselves” in any relevant sense of the word, and s. 13
protection should not be available to them.

4. Should the Court Reconsider Kuldip?

48Insofar as Kuldip permitted cross-examination of the accused on
the inconsistent testimony he volunteered at his first trial, Kuldip
should, of course, be affirmed. However, insofar as the Court felt compelled
by Mannion to narrow the purpose of the cross-examination to the
impeachment of credibility, and to deny the probative effect of the answers on
the issue of guilt or innocence, it seems to me our decision today not to
follow Mannion renders such restrictions no longer operative. If the
contradiction reasonably gives rise to an inference of guilt, s. 13 of the
Charter does not preclude the trier of fact from drawing the common
sense inference.

5. Should the Court
Reconsider Noël?

49Noël is a classic example of prosecutorial abuse of the very
“bargain” s. 13 was designed to enforce. Noël was not on trial at the
time he gave the testimony subsequently relied upon by the Crown. He was a
compellable witness who at common law could have refused to answer the Crown’s
questions that tended to show his guilt. He was compelled by s. 5(1) of the Canada
Evidence Act to answer the incriminating questions, and in consequence he
invoked the protection of s. 5(2). When s. 5(2) says “the answer so
given shall not be used or admissible in evidence”, it means not to be used for
any purpose, including the impeachment of credibility. We should affirm
the correctness of the result in Noël on its facts.

50I would go further. Even though s. 13 talks of precluding the use
of prior evidence “to incriminate that witness”, and thus implicitly leaves the
door open to its use for purposes other than incrimination such as impeachment
of credibility (as Kuldip accepted), experience has demonstrated the
difficulty in practice of working with that distinction. If, as Noël
held, and as Arthur Martin J.A. observed in Kuldip, the distinction is
unrealistic in the context of s. 5(2) of the Canada Evidence Act,
it must equally be unrealistic in the context of s. 13 of the Charter.
Accordingly, by parity of reasoning, I conclude that the prior compelled
evidence should, under s. 13 as under s. 5(2), be treated as
inadmissible in evidence against the accused, even for the ostensible purpose
of challenging his or her credibility, and be restricted (in the words of
s. 13 itself) to “a prosecution for perjury or for the giving of
contradictory evidence”.

6. Should the Court
Reconsider Allen?

51Allen was a straightforward application of Noël to an
accused who was confronted with prior compelled testimony given at the trial of
somebody else. He had given his quid pro quo. The decision was
correct.

7. The Significance of Obiter Dicta in Noël

52The Attorney General of Ontario, in particular, argued more strenuously
about some of the obiter commentary in Noël than about its actual
result, such as Arbour J.’s suggestion that circumstances enabling a Kuldip
type cross-examination might be “rare” (para. 60). The Attorney General
worries that this sort of obiter will be seen as binding on trial
courts. I do not think this “concern” is plausible. The comment was neither
part of the legal analysis nor a direction to trial courts. It was simply an
observation by an experienced judge. More significantly, the respondent and
the intervening attorneys general contend that everything said in Noël
about the application of s. 13 to an accused in a retrial on the same charge is
obiter. While I agree that every judgment has to be read in light of
the facts the Court was dealing with, and that Noël was emphatically not
a case of a retrial of the same accused on the same indictment, nevertheless I
believe the submissions of the attorneys general presuppose a strict and tidy
demarcation between the narrow ratio decidendi of a case, which is
binding, and obiter, which they say may safely be ignored. I believe
that this supposed dichotomy is an oversimplification of how the common law
develops.

53The traditional view expressed by the Earl of Halsbury L.C. was that “a
case is only an authority for what it actually decides”, and that

every judgment
must be read as applicable to the particular facts proved, or assumed to be
proved, since the generality of the expressions which may be found there are
not intended to be expositions of the whole law, but governed and qualified by
the particular facts of the case in which such expressions are to be found.

(Quinn v. Leathem, [1901] A.C. 495 (H.L.), at p. 506)

The caution was
important at the time, of course, because the House of Lords did not then claim
the authority to review and overrule its own precedents. This is no longer the
case. Even in the time of the Earl of Halsbury L.C., however, the challenge was
to know how broadly or how narrowly to draw “what it actually decides” (p.
506). In Canada in the 1970s, the challenge became more acute when this
Court’s mandate became oriented less to error correction and more to
development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme
Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public
importance”). The amendments to the Supreme Court Act had two effects
relevant to this question. Firstly, the Court took fewer appeals, thus accepting
fewer opportunities to discuss a particular area of the law, and some judges
felt that “we should make the most of the opportunity by adopting a more
expansive approach to our decision-making role”: B. Wilson, “Decision-making
in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234. Secondly, and
more importantly, much of the Court’s work (particularly under the Charter)
required the development of a general analytical framework which necessarily
went beyond what was essential for the disposition of the particular case. In
those circumstances, the Court nevertheless intended that effect be given to
the broader analysis. In R. v. Oakes, [1986] 1 S.C.R. 103, for example,
Dickson C.J. laid out a broad purposive analysis of s. 1 of the Charter,
but the dispositive point was his conclusion that there was no rational
connection between the basic fact of possession of narcotics and the legislated
presumption that the possession was for the purpose of trafficking. Yet the
entire approach to s. 1 was intended to be, and has been regarded as, binding
on other Canadian courts. It would be a foolhardy advocate who dismissed
Dickson C.J.’s classic formulation of proportionality in Oakes as mere obiter.
Thus if we were to ask “what Oakes actually decides”, we would likely
offer a more expansive definition in the post-Charter period than the
Earl of Halsbury L.C. would have recognized a century ago.

54From time to time there have been statements of some members of this
Court that have been taken to suggest that other courts are bound by this
Court’s considered ruling on a point of law, even a point not strictly
necessary to the conclusion. Most famously, in Sellars v. The Queen,
[1980] 1 S.C.R. 527, at p. 529, Chouinard J. resolved an issue respecting jury
instructions by reference to an earlier decision of this Court and said:

. . . this is the interpretation that must prevail.

As it does from time to time, the Court has thus
ruled on the point, although it was not absolutely necessary to do so in order
to dispose of the appeal.

56Some of these comments simply reflect the practical consideration that
disregarding the majority view of this Court on a point of law, even if it was
not strictly necessary for the disposition of the case in which it was
expressed, may just precipitate a successful appeal. Other comments suggested
that the “Sellars principle” had ripened into a new doctrine of law.
This extension was challenged in “Ratio Decidendi and Obiter Dicta”
(1993), 51 Advocate (B.C.) 689, by the Honourable Douglas Lambert,
writing extra-judicially, who canvassed the case law and concluded that at
least some of the confusion was due to an error translating Chouinard J.’s
opinion from French to English as well as by an overstatement by the writer of
the English headnote in Sellars itself. More recently, Professor M.
Devinat, in “L’Autorité des obiter dicta de la Cour suprême” (1998), 77 Can.
Bar Rev. 1, suggested that some courts were only too willing to broaden the
scope of the “Sellars principle” to lighten their own workload by minimizing
what remained for them to decide. If Professor Devinat is correct, the effect
would be to deprive the legal system of much creative thought on the part of
counsel and judges in other courts in continuing to examine the operation of
legal principles in different and perhaps novel contexts, and to inhibit or
skew the growth of the common law. This would be a consequence totally
unforeseen and unintended by the Court that decided Sellars. Thus the
notion of “binding effect” as a matter of law was disavowed by this Court in Reference
re Remuneration of Judges of theProvincial Court of Prince Edward
Island, [1997] 3 S.C.R. 3, at para. 168, for example, where Lamer C.J.,
writing for six members of the seven-judge panel said that “the remarks of Le
Dain J. [writing for the Court in Valente v. The Queen, [1985] 2 S.C.R.
673] were strictly obiter dicta, and do not bind the courts below”.

57The issue in each case, to return to the Halsbury question, is what did
the case decide? Beyond the ratio decidendi which, as the Earl of
Halsbury L.C. pointed out, is generally rooted in the facts, the legal point
decided by this Court may be as narrow as the jury instruction at issue in Sellars
or as broad as the Oakes test. All obiter do not have, and are
not intended to have, the same weight. The weight decreases as one moves from
the dispositive ratio decidendi to a wider circle of analysis which is
obviously intended for guidance and which should be accepted as authoritative.
Beyond that, there will be commentary, examples or exposition that are intended
to be helpful and may be found to be persuasive, but are certainly not
“binding” in the sense the Sellars principle in its most exaggerated
form would have it. The objective of the exercise is to promote certainty in
the law, not to stifle its growth and creativity. The notion that each phrase
in a judgment of this Court should be treated as if enacted in a statute is not
supported by the cases and is inconsistent with the basic fundamental principle
that the common law develops by experience.

58These propositions may be illustrated by Noël itself. At
paragraph 36 and following, Arbour J. summarizes aspects of the jurisprudence
under s. 5(2) of the Canada Evidence Act, including points not
necessary to the Noël judgment itself. The discussion, while obiter,
is (as the saying goes) learned obiter, and would quite properly be
regarded in future cases as an authoritative summary. On the other hand, the
“rare circumstances” comment that bothered the Attorney General of Ontario was
not part of the analysis, and should not be taken as imposing a rule or norm or
even a statistical hurdle limiting other courts.

59It is neither desirable nor practical to go through Dubois, Mannion,
Kuldip and Noël to identify which of the obiter statements
urged upon us by counsel at the hearing of this appeal should be regarded as
authoritative. The present reasons endeavour to re-establish the core concept
stated in Dubois that “the purpose of s. 13, when the section is
viewed in the context of s. 11(c) and (d), is to protect
individuals from being indirectly compelled to incriminate themselves”
(p. 358). To the extent statements in the other cases are inconsistent
with the rationale of compulsion (the “quid pro quo”), they should no
longer be regarded as authoritative.

IV. Conclusion

60The result of a purposeful interpretation of s. 13 is that an
accused will lose the Mannion advantage in relation to prior volunteered
testimony but his or her protection against the use of prior compelled
testimony will be strengthened. The two different situations will be treated
differently instead of homogenized, and the unpredictability inherent in
sorting out attacks on credibility from attempts at incrimination will be avoided.

61For the foregoing reasons, I conclude that the s. 13Charter
rights of the appellants (who were volunteers at both trials) were not violated
by the Crown’s cross-examination. Their appeals must therefore be dismissed.